ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 793/10
DATE: 20120913

BETWEE N:

HER MAJESTY THE QUEEN

Mr. B. Linley for the Crown

• and -

CODY MICHAEL CROCKER

Mr. P. Cornish for the Defendant

Defendant

HEARD: September 10-13, 2012

REASONS FOR DECISION ON THE VOIR DIRE REGARDING

MR. CROCKER’S STATEMENTS TO THE POLICE

Conlan J.

INTRODUCTION

[ 1 ] Mr. Crocker is being tried on a six-count Indictment involving firearms-related charges and aggravated assault stemming from a shooting incident in Hanover, Ontario in November 2009.

[ 2 ] Mr. Crocker has pleaded not guilty to all six counts. The jury has been selected.

[ 3 ] A voir dire has been held with regard to statements made by Mr. Crocker to the police after his arrest on November 23, 2009. There are three statements:

(i) an audio and video recorded statement made on November 23, 2009 at the Walkerton OPP detachment, with a transcript, involving Mr. Crocker and Detectives Rau and Schwass of the OPP;

(ii) an audio and video recorded statement made on November 24, 2009 at the Walkerton OPP detachment, with a synopsis, involving Mr. Crocker and Detective Schwass;

(iii) an audio recorded statement made on November 26, 2009 at the Walkerton Jail involving Mr. Crocker and Detectives Schwass and Paddon of the OPP.

[ 4 ] The November 23 interview was from about 10:44 p.m. until about 12:27 a.m. on November 24. It began with Detective Rau and Mr. Crocker in the interview room. After a break, Detective Schwass took over the interrogation, with Rau remaining in the room. The November 24 interview was much shorter in duration and ended just after 1:00 p.m. The November 26 interview took place in a private room upstairs at the Walkerton Jail. It was shorter than the interview that took place on November 23, with the accused and the two Detectives in the room. It commenced at about 10:44 a.m. Video recording equipment was not available. The focus of that interview was to ascertain whether the accused could help police locate some firearms that had been stolen, although there was some discussion about the shooting incident.

[ 5 ] The Crown called the following witnesses in this order on the voir dire, all police officers: McCabe (OPP), Dinning (Wingham Police), Rau (OPP), Schwass (OPP) and Paddon (OPP). McCabe and Dinning were called to testify because they attended at the location of the arrest of Mr. Crocker, although neither took any statement from the accused and only Dinning had contact with him. The recorded interviews were marked Exhibits.

[ 6 ] Mr. Crocker testified for the defence.

ONUS AND STANDARD OF PROOF

[ 7 ] To be admissible, the Crown has the onus of proving these statements were made by the accused voluntarily. That must be proven beyond a reasonable doubt. There is no burden on the defence. There is no Charter Application in this case.

THE JURISPRUDENCE RELIED UPON AND THE POSITIONS OF THE PARTIES

[ 8 ] The Crown filed the following authorities, all of which the Court has carefully reviewed and considered: Regina v. Cubacub, [2012] O.J. No. 3668 (S.C.J. – Ricchetti J.), the seminal decision and leading authority from the Supreme Court of Canada in Regina v. Oickle, 2000 SCC 38 (), [2000] S.C.J. No. 38, and Regina v. E.B., 2011 ONCA 194 (), [2011] O.J. No. 1042 (C.A.).

[ 9 ] The defence filed the following authorities, all of which the Court has carefully reviewed and considered: Regina v. Sawatsky, 1997 511 (ON C.A.), and Regina v. Hoilett, 1999 3740 (ON CA), [1999] O.J. No. 2358 (C.A.).

[ 10 ] In essence, the Crown’s position may be summarized in this manner. The accused knew or suspected in advance that he would be speaking with the police. He sought legal advice and suggestions from his friend, Mr. Ward Jr. He had a plan to fabricate a story to the police. He was not intoxicated or under the influence of any substance or physically ill when he spoke with the police. The police were reasonable with Mr. Crocker. Rights to counsel and the two cautions were properly provided to the accused upon his arrest. The two charges were adequately recited to the accused at the time of his arrest. Mr. Crocker’s will was never overwhelmed by the police. The conduct of Detective Schwass, in particular, was not improper. Mr. Crocker had an operating mind at all relevant times.

[ 11 ] Essentially, the position of the defence is the following. Mr. Crocker was intoxicated by alcohol at the time of the alleged offences. He had very little sleep and had driven for many hours afterwards. He ate only a small meal before being confronted by the police. The rights provided to the accused at the scene of the arrest were not meaningful. Mr. Crocker was tired and actually slept at the Walkerton OPP detachment before the first interview. Mr. Crocker was very tired during that first interview as well as during the interview the next day. There was an imbalance of power between the police, especially Schwass, and Mr. Crocker. Mr. Crocker did not have an operating mind during the first and second interviews. Further, Schwass was abusive and oppressive during the first interrogation, causing the will of Mr. Crocker to be overwhelmed (for example, as reflected by the exchange about the memory of Mr. Crocker at page 67, line 15 of the transcript). Also, Schwass offered an improper inducement to the accused during the first interview regarding favours – the bottom of page 63 of the transcript. With regard to the second interview, Mr. Crocker’s constitutional rights were violated. Regarding the third interview on November 26, the Charter rights of the accused were again violated. In summary, the November 23 statement is inadmissible because of the lack of an operating mind, oppressive circumstances and the improper inducement. The November 24 statement is inadmissible because of the lack of an operating mind and the infringement of the Charter rights of the accused. The November 26 statement is inadmissible because of the violation of Mr. Crocker’s constitutional rights.

ANALYSIS

[ 12 ] Having considered all of the evidence, testimonial and by way of Exhibits, the case law provided and the submissions of counsel, ably presented on both sides, this Court concludes that the statements are admissible. They were made by Mr. Crocker voluntarily. That has been proven by the Crown beyond a reasonable doubt.

[ 13 ] I do not accept those material aspects of Mr. Crocker’s testimony which imply that he did not give the statements voluntarily. I use the word “imply” because, in fact, Mr. Crocker testified in cross-examination that he was “okay” in speaking with Schwass on November 23 and November 24; that he knew that he did not have to speak with Rau when Rau first removed him from the cell on November 23; and that he knew that he did not have to speak with the two police officers when they arrived at the Walkerton Jail on November 26. Second, the evidence of Mr. Crocker has not raised a reasonable doubt. Third, I am satisfied on the whole of the evidence that I do accept that the statements have been proven, beyond a reasonable doubt, to be voluntary, reliable and, thus, admissible at the Trial of Mr. Crocker.

[ 14 ] I have examined all of the circumstances and the totality of the evidence adduced at the voir dire, as the law prescribes. Individual remarks cannot be parsed out and assessed in isolation.

[ 15 ] A statement by an accused person may be found to be inadmissible on the basis of several factors including:

(i) threats, promises and/or inducements by the police to the accused;

(ii) oppression or abusive conduct by the police towards the accused;

(iii) the lack of an operating mind on the part of the accused;

(iv) and/or improper police trickery.

[ 16 ] Not every threat, promise or inducement will render a statement involuntary and thus inadmissible. The entire factual context must be examined. Key considerations are whether the accused had a fear of prejudice or a hope of advantage; whether the police offered a quid pro quo. Likewise, not every act of intimidation or aggressiveness by the police will amount to oppressive or abusive circumstances. Not every police fabrication or trick will render a confession inadmissible. And not every instance of a mental deficit on the part of the accused, whether through being tired or otherwise, will result in a finding that he lacked the requisite operating mind when speaking with the police.

[ 17 ] The Courts must be vigorous in ensuring that an accused person’s will is not overcome by police conduct, verbal or physical, which offends the principles articulated by the Supreme Court of Canada in Oickle, supra. We must guard against false confessions. We must only admit statements by accused persons that are proven to the requisite standard to be voluntary and reliable. At the same time, it is vital to recognize that, as Justice Lamer so well declared in Rothman v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640, “the investigation of crime and the detection of criminals is not a game to be governed by the Marques’s of Queensbury rules” (page 697).

[ 18 ] I reject the argument by the defence that Mr. Crocker lacked an operating mind during the first two interviews. He was undoubtedly tired. But I find that he knew what he was saying and that he was saying it to the police who could use his comments to his detriment, and that is the test.

[ 19 ] I reject the argument by the defence that Schwass improperly induced Mr. Crocker to make a statement on November 23. The exchange highlighted by the defence is simply not an inducement; there is no quid pro quo.

[ 20 ] I reject the argument by the defence that Schwass’ conduct was oppressive during the first interrogation. It was markedly different than the style of Rau. That does not make it abusive. It was forceful, among other descriptors. It did not come close, in my opinion, to overcoming the will of Mr. Crocker.

[ 21 ] I reject the argument by the defence that the failure of the police to re-read the complete right to counsel and cautions on November 24 and November 26 resulted in Mr. Crocker giving involuntary statements to the police on those occasions. Remember that there is no Charter application, however, there is a connection between the provision of one’s constitutional rights and voluntariness. Failure of the police to give proper rights may, in some situations, result in an involuntary statement. I make no such finding in this case. Mr. Crocker’s own testimony belies such a determination.

CONCLUSION

[ 22 ] The three statements made by Mr. Crocker to the police are ruled admissible at the trial of the accused.

Conlan J.

Released: September 13, 2012

COURT FILE NO.: 793/10
DATE: 20120913

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN - and - CODY MICHAEL CROCKER Defendant REASONS FOR DECISION ON THE VOIR DIRE REGARDING MR. CROCKER’S STATEMENTS TO THE POLICE Conlan J.

Released: September 13, 2012